The US Faces a Refugee Crisis, Not an Immigration Problem

According to the United Nations High Commissioner on Refugees, more than 90,000 children from Mexico and Central America will be forcibly displaced by the end of the year. 90,000 Children. Behind these children are 90,000 individual tragedies. Children being killed and traumatized by gang violence, children with broken families, forced to abandon their homes and avail themselves from the protection of another state.

The responsibility of this situation lies in the poor governance of the governments of El Salvador, Honduras, Guatemala and Mexico. These Central American countries have some of the highest murder rates in the world and their governments’ inability to subdue the violence has caused this situation to reach its current state. These children are not seeking economic benefit; they are fleeing because the violence and instability in their home country has escalated to the degree that warrants them international protection and the status of asylum seekers. They are escaping due to a well-founded fear of being killed and hurt because their own government cannot provide for their safety and security and thus they must avail themselves from the shelter of another state. The issue has escalated to the point that this is no longer an immigration story but a refugee crisis.

The heart drenching stories behind the refugee crisis range from an 11 year old abandoning Guatemala to help support his bedridden dying mother to a possible 17 year old with a curiosity that could have unravel the world yet statistically he is bound to get sucked into the violence of cartels. In a world in which human beings should enjoy freedom from prosecution, freedom from want and economy security, protecting refugees needs to be proclaimed as the highest aspiration of the international community and the common people. We need to remind the governments of El Salvador, Honduras and Mexico that they have a responsibility to these children and many others who might consider fleeing their home country. They have the responsibility to build up their social structure and provide the basic needs, shelter and structure needed for a stable and safe society. Politicians, judges and polices forces can no longer ignore their duty. They have to stop the immunity and the extortion and start protecting. These governments have to ensure that if given a choice children would never abandon their homes… because to these 90,000 children that fled, staying was no longer a choice.

The core concern in this situation should not be a concern with borders but a concern with the life and dignity of these children. Although the responsibility of this inflow of unaccompanied minors clearly lies within their home government this does not mean the governments where these children are seeking refugee should shy away from their responsibilities under international law. The children arriving to the US borders are living a life of terror. They fear for themselves, they worry about the family members they left behind. They are scared of getting trafficked and sucked into the violence. They want to avoid drugs and death. Among these children are girls that do not want to get kidnapped, beaten and raped by gangs. Girls that are seen as sexual objects and threatened if they don’t obey. At the tender age of 14 they fear the unknown dangers and uncertainty hunts them. Some of these refugees are orphans, some are teenagers escaping the cross fire and gang violence, others are escaping the vestige of a failed system that could not provide for them; whatever they are fleeing from it is clear that to them staying was no longer a choice.

The 1951 Convention Relating to the Status of Refugees defines a “refugee” as any person who is outside their country of origin and unable or unwilling to return there or to avail themselves of its protection.These children long for a better world, some want to be writers others engineers yet they grew up in a world of violence where their dreams are unattainable and a death a day is considered normality. The principle of non refoulement, considered a norm of customary international law, states that a state may not oblige a person to return to a territory where the person will be exposed to persecution and the violation of its dignity. Returning these children back to their home country would not only expose them to danger but it would be the same as granting them a death sentence. Furthermore the 1966 Bangkok Principles on Status and Treatment of Refugees expands the definition of a refugee to include a person fleeing “external aggression, or events seriously disturbing public order (such as those happening in Central America) in either part or the whole of [their] country of origin’ and their lawful dependents.” Children have a pure heart, they don’t understand politics or immigration laws but they do understand humanity and, despite everything they have endured, they believe that there is still hope in the world for them. They see this hope in the United States, Nicaragua, Costa Rica and Panama and that is why they come here. The convention and the declaration thus grant these children the rights to seek a safe haven and simultaneously oblige the signatory countries to grant them asylum.

The fundamental responsibility to these children is not admitting them here or there or sending them away but to assist them through democratic attachments and constitutional norms. Under the 1951 Convention Relating to the Status of Refugees the states agree to provide assistance to refugees such as administrative assistance, legal identity papers, travel document, and the ability to naturalize as citizens. In regards to basic human rights, article IV of the conventions provides for the “treatment no less favorable than that generally accorded to aliens in similar circumstances, with due regard to basic human rights as recognized in generally accepted international instruments.” The 90,000 children are not only in their right to be granted asylum and protection but to be treated with respect and dignity.

What is then the role of the U.S in this situation? The media attention has been focused on how the United States has responded to the massive influx of refugees at its borders. It is important to remind the United States that rather than being an immigration problem, this is a refugee crisis and thus the United States must respond to the petitions and needs of these children accordingly.The United States is not the only country receiving asylum seekers due to this crisis, Nicaragua, Costa Rica and Panama, countries with smaller resources, have all reported receiving an increase in asylum seekers yet the United States is the only country turning them down.

The United States needs to be reminded that asylum seekers have rights, and ultimately the right to asylum is stipulated under international law as a human right; thus spontaneous acts of humanitarianism will not suffice to define the institutional commitments democracies have to aid these children. In other words, according to international law regarding refugee policy the United States, Nicaragua, Costa Rica and Panama do not only have a moral duty to help these children but an obligation to do so. When a state complies with international agreements it is not a mere act of compassion or humanitarian kindness but rather a duty and a responsibility because above all nationality, humanity comes first and furthermost. If there is a category of asylum seekers that might make states more inclined to abide by international law agreements, then children traveling alone definitely meets this criteria.

The White House has stated that most unaccompanied minors arriving to the border are unlikely to qualify for humanitarian relief and thus will have no legal basis to stay in the country; yet the United States is a signatory to various conventions that specifically reflect the principle of non refoulment, thus, in fact, granting the children a legal basis to stay in the country as asylum seekers. Statements made by Homeland Security stating that the flood of unaccompanied minors crossing the border is a legal and a humanitarian dilemma further back up the status of the children as asylum seekers. Additionally, section 207(b) of the Immigration & Nationality Act, 8 U.S. Code Sec.1157 (b) states that if an unforeseen emergency refugee situation exists, then the admission of certain refugees in response to the emergency refugee situation is justified by grave humanitarian concern. Under this code the president of the United States has the ability to rightfully declare these children as refugees. Failing to grant asylum to these unaccompanied minors would violate this code, and deporting them would be breaking international law and would also violate the Trafficking and Victims Re-authorization Act of 2008, and more importantly the Homeland Security Act of 2002. According to the law of the United States; citizens from a non bordering states most be taken by the Border Patrol and transferred to the Office of Refugee Resettlement, and because most of these children are coming from Honduras and El Salvador, any deportation currently made is deemed illegal. By deporting these children the United States is not only knowingly violation international law but its very own national law as well. In order to settle the humanitarian issues this crisis has brought; respecting international as well as national asylum and refugee laws is necessity.

In the following weeks, when the U.S decides the fate of these children, it needs to keep in mind that any decision to strengthen the border needs to also include protection from sending children back to places where they might face violence as specified in the international conventions and agreements the United States is a signatory to. The government’s policies need to be strengthened to not only encompass immigration reform but also a clear and concise policy in abiding by international asylum law principles. It needs to set up well-established institutional settings and legal procedures that actively abide to asylum law and practices. Asylum officers and judges need to be trained to actively deal with these traumatized children, border patrol agents need to adequately screen children and identify those fleeing persecution, traffickers, and sexual exploitation. They need to be protected and ensured full protection and rights granted to them as asylum seekers, they need to be represented by lawyers and granted the whole spectrum of due process. The United States has a moral duty to ensure that they are protecting these children rather than just handing death sentences. The United States thus needs to abide by the principle of non-refoulment, which forbids the rendering of a victim back to a place where they might be persecuted or where their lives or freedoms could be threatened.

How the United State reacts to the political risks associated with asylum, the management of forced migration and its responsibility, the role of intermediate actors, asylum interviewers, local governments, immigration judges, and security staff will ultimately determine its success in solving the crisis. Ultimately, in order to help consolidate the Central American crisis the United States needs to inspire a doctrine that respect asylum laws and that is consistent with American laws and the values on which the country was founded. The United States is known as a humanitarian nation, a nation with character, the land of the free, founded on taking in the poor, the hungry, the tired, the huddled masses yearning to breathe free. As the symbol of the Unite States stands “a mighty woman with a torch, whose flame is the imprisoned lightning, and her name, Mother of Exiles,”now is the time for the United States to lift its lamp besides the golden door.

As for the role of the common people, the majority of us keep humanity in high regard in principle but we have no time to give it a meaning of our own. The refugee crisis in Central America means that over 90,000 lives are being uprooted. These are 90,000 desperate souls trying to find refuge away from home and we have a responsibility to care and be concerned about the actions and policies of our governments regarding other humans. Our focus should be to protect and assist these innocent children caught in the midst of the conflict. Human security pertains above all to the safety and well being of all the people everywhere. Human security is not about states and nations, but about individuals and people. A policy in regards to the crisis in Central America needs to shift away from nationalistic concerns. We need to ensure these refugees are protected and granted basic rights because above all nationality; humanity needs to be our first concern. There is a human face to the US border crisis; these are 90,000 children that, had we not been lucky enough, could have ultimately been our own.

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About the Author

Valeria Gomez Palacios is a freelance writer from Managua, Nicaragua. She studies Diplomacy and Modern languages at the School of Diplomacy and International Relations at Seton Hall University. Her current research interests lie in human rights law, international development and peace management. She has interned at the United Nations offices in Vienna and the Nicaraguan foreign ministry. Fluent in Spanish, German, French and Italian, she works part time as an independent translator for various NGOs.